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CONSTITUTIONALISM UNDER STRESS
Both At Home and Abroad

by RICHARD E. BERG-ANDERSSON
TheGreenPapers.com Staff
Thu 14 Jul 2022

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Earlier this month, only a few days after the United States of America had celebrated the 246th Anniversary of its having declared its Independence back on 4 July 1776, an altogether arresting- where not also possibly alarming- headline crossed the transom of the feed of Internet-posted News and Commentary I at least semi-regularly peruse in the course of whatever it is that I do for TheGreenPapers.com now, as the 2022 Midterm Election cycle here proceeds apace: it read something to the effect of Supreme Court turns US Constitution into Suicide Pact. Clearly this article was written in response to many of the decisions handed down come the end of the most recent- arguably, one of the most contentious and controversial (politically, as well as constitutionally) of same- Term of Court in that High Court's (at least relatively recent) history at the end of this past June (about a week before this headline itself appeared).

Regardless of the merits- or not- of what is implied by that headline as regards the most recent Jurisprudence put forth by the United States Supreme Court, I decided it was now the time to write about various and sundry aspects of Constitutionalism itself in relation to at least some of the events and issues America and the World have been facing of late as we now go on into the second half of the year 2022 (and, although it is not yet the time, gentle reader, for me to now "preview"- as it were- the 2022 Midterm Election of this coming November, these very events and issues will, in some way [be it great or small], play a role in determining the outcome of that election):

hence, this very piece.

[Just an aside here (which the uninterested reader is, of course, free to skip before moving on to the next section of this Commentary): The well-worn (and oft ill-used) phrase "the Constitution is not a suicide pact" was, in the above-referred to article, attributed to U.S. Supreme Court Justice Robert Jackson. Although so crediting Justice Jackson is more usually done, the actual origins of this particular constitutional aphorism are at least a tad more complex. To here summarize (as best I can, without too much oversimplification)--

Justice Jackson's own version is as follows: There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact, this from a Dissent of his in a 1949 case in which the majority on the Court had overturned the conviction of someone for violating a Chicago city ordinance prohibiting the making of a "diversion tending to a breach of the peace" (albeit on technical grounds, however: in this case, what was held to be an incorrect [thereby, unconstitutional] Charge to the Jury by the trial judge). However, 14 years later (in 1963): Justice [Arthur] Goldberg wrote that while the Constitution protects against invasions of individual rights, it is not a suicide pact, this from an Opinion of the Court striking down, as unconstitutional, the potential deportation of someone on grounds of automatic loss of citizenship for "departing from or remaining outside the jurisdiction of the United States in time of war... for the purpose of evading or avoiding training and service" in the United States military...

In a 6 May 2013 Commentary of mine, I opined that At first glance, it seems as if Jackson's formulation of "The Constitution is not a suicide pact" is directed against an assertion of individual rights and liberties (as it comes from a dissent from a Court Opinion in support of Free Speech) while Goldberg's (coming from a Court Opinion favoring someone otherwise facing deportation without enough Due Process protection) is in favor of just such an assertion; thus, it is all to easy (where not also overly simplistic) to see Jackson's as the 'conservative' take in contradistinction to Goldberg's as the 'liberal' view. (Indeed, in that same piece, I also noted that [m]uch of how the aphorism "The Constitution is not a suicide pact" is applied (or even misapplied) depends on whose use of it (Jackson's or Goldberg's) is actually cited, as well as by whom (as liberals, to this day, seem to more often purposely credit Jackson [as if to say to conservative opponents: "see, someone not so liberal first said this!"] while conservatives, for their own part, tend to- and for much the same reason- cite Goldberg ["Hey, one of yours said this!"])).

I then further offered that in reality, both versions merely mirror one another: for each supports the notion that Government can, where necessary, restrict or even repress individual rights and liberties (although only so that the Constitution does not turn out to have been just such a "suicide pact")-- it's just that Jackson's complaint (as it were) was that Government should have been allowed to do so... while Goldberg happened to speak for a Court that would not [so] allow... In addition- especially since Jackson only referenced the Bill of Rights, while Goldberg mentioned the Constitution as a whole- credit for coming up with the aphorism "The Constitution is not a suicide pact" should, properly, be given to both men....

but, of course, I here digress-- as I, admittedly (as well as all too often), tend to do!]

[P]erhaps never in its long history has the principle of Constitutionalism been so questioned as it is questioned today; never has the attack upon it been so determined or so threatening as it is just now. The world is trembling in the balance between the orderly procedure of Law and the processes of Force which seem so much more quick and effective. We must make our choice between these two, and it must be made in the very near future.--
CHARLES HOWARD McILWAIN: from Constitutionalism: Ancient and Modern [1940]

By the time Professor McIlwain's book (from which I quoted above) was published, Adolf Hitler's army had already invaded Poland, and the chain of events soon flowing from same (the division of Poland between Nazi Germany and the Soviet Union [giving the latter, back then including Belarus and Ukraine, a western border pretty much still in existence], the Soviet invasion of Finnish Karelia [also leading, ultimately, to a border still extant], the forced incorporation of the three 'Baltic States' into the Soviet Union, while Nazi German military force was already menacing Scandinavia, the Low Countries and, ultimately, France) was already well underway: thus, what would soon become known as the Second World War was already raging on, and along, the opposite shores of both oceans the continental United States of America (at the time, still home to its only constituent States) fronted (for Japan was, at this same time, militarily expanding its own reach down through East Asia).

However, his book was actually a collection of lectures McIlwain had already given at Cornell University during the academic year 1938-1939, the last such academic year before Hitler's aims and orders would first initiate outright military conflict; an academic year that was also that of 'Munich', ever since a shorthand for an act of "Appeasement", in this case one in which the 'Sudetenland' (home to many ethnic Germans) was ripped from the Czechoslovak Republic and attached to Hitler's Third Reich in a vain (a word that here may fairly be defined in at least two ways) attempt to stop Germany from seeking yet more territory, perhaps by force. This course of policy, of course, failed: Czechoslovakia would all too soon thereafter be dismembered into a Nazi "Protectorate" of Bohemia-Moravia laid, much like a dying wreath, atop the grave of free Czechia, along with a rump, pro-German Slovakia to its east. Poland, in the end, thereby only ended up being "next" in what was to become an ever more violent sequence of actions reducing once independent Nation-States, from the very recent (besides Czechoslovakia and Poland, those Baltic States of Estonia, Latvia and Lithuania) to some of the oldest in Europe (Denmark and Norway, the Netherlands and France) and those in between (say, Belgium) to incorporation within- or, at best, tributary to- either of the Nazi or Soviet Empires as the decade of the 1940s first dawned.

Yet, here we are-- some eight decades now since the "high water mark" of the Axis Powers during that Great Conflict (in 1942: before the Allies- by then also including the United States of America- began to effectively beat back that all too lethal tide)-- once again confronting much the same question posed by the events recounted in the preceding two paragraphs: that is, the same choice so starkly posited by Professor McIlwain: that between Law and Force as a method and manner of governance; and all primarily (but not at all entirely!) thanks to the military invasion of Ukraine by the military forces of Vladimir Putin's Russian Federation this past 24 February.

In all governments, there is a perpetual intestine struggle, open or secret, between AUTHORITY and LIBERTY; and neither of them can ever absolutely prevail in the contest. A great sacrifice of liberty must necessarily be made in every government; yet even the authority, which confines liberty, can never, and perhaps ought never, in any constitution, to become quite entire and uncontrollable.--
DAVID HUME: from Essays, Moral, Political and Literary: Essay 5 'Of the Origin of Government' [1741]

[A] constitutional convention in theory embodied the sovereignty of the people. The people chose it for a specific purpose, not to govern, but to set up institutions of government. The convention, acting as the sovereign people, proceeded to draft a constitution and a declaration of rights... It was the constitution that created the powers of government, defined their scope, gave them legality, and balanced them one against another... The convention thereupon disbanded and disappeared, lest its members have a vested interest in the offices they created... The people, having exercised sovereignty, now came under government. Having made law, they came under law. They put themselves voluntarily under restraint. At the same time, they put restraint upon government.--
R.R. PALMER: from The Age of the Democratic Revolution: A Political History of Europe and America, 1760-1800 [1959]

The Russian Federation over which its President, Vladimir Putin, currently holds sway is, in fact, the lineal- as well as logical- successor to the Russian Empire of the Czars (no less than, in truth, the Union of Soviet Socialist Republics itself became [especially as Lenin and Trotsky gave way to Stalin, and the initial Bolshevik pipe-dream of an international, perhaps multi-continental, collection of such 'Soviet Socialist Republic's died with each of the first two men]). Again, as with dealing with Professor McIlwain's "choice", I will come back to this notion later, at the appropriate place within this piece; I only bring up the concept of 'Empire' here and now for a narrower, more specific, reason:

The English word 'Empire' is but a direct translation of the Latin Imperium and, obviously, thereby comes down to us from Roman usage (indeed, the Russian Empire initially saw itself as the lineal successor to, as well as inheritor of, the forms and titles ["Czar" being so clearly the Russian equivalent of "Caesar"] of, the Roman Empire more than was the, at the time, still extant 'Holy Roman Empire' of the West; this inheritance, largely through the Orthodox Church, was especially that of the Eastern Roman [become 'Byzantine'] Empire which, ultimately, fell to the Ottoman Turks in 1453 [and it is certainly no accident that Ivan IV 'the Terrible' (whose own great-grandfather, Thomas Paleologus, was a younger brother of the last-ever Byzantine 'Caesar'), upon formally succeeding his late father as Grand Prince of Muscovy in 1547, would be the first to publicly claim the title "Czar" [although his grandfather, Grand Prince Ivan III (Thomas Paleologus's son-in law), at least occasionally used the title privately]), and we today tend to much more perceive an 'Empire' as being principally geographic (or, perhaps, a better appellation might be 'geometric'- in a sense apart from its more technical meaning within Mathematics: for we, quite literally, measure the geographical extent of Empires across the surface of the Earth in our own everyday modern applications of the term to both History, as well as the present).

But the Romans themselves did not see Imperium this way: rather, this Latin word is better translated as implying either "command", or even "control"; applied to territory, it is best translated as "domain" or "realm" (and, in this particular realm of language [sorry!], the German word Reich is itself a more accurate translation of Imperium!). We English-speakers also translate the Latin Imperator as "Emperor" (indeed, this is also the English translation of the Russian 'Czar' [or, for that matter, the German Kaiser, itself so clearly derived from "Caesar"!]): that is, the ruler- the Sovereign- of an Empire (in its 'geometric' sense); but Imperator was, at the start, a military title (equivalent to "Commander-in chief" of armed forces); the political title of the Roman 'Emperor'- going all the way back to Caesar Augustus- was, on the other hand (literally!), Princeps (root of our English word "Prince")- the "principal" to whom all others are, at best, but "agents" (where not merely "subjects"): yes, it was a but thinly-veiled (as seen by later generations) attempt to maintain the forms of the old Roman Republic (which had no King, although it certainly had its Dictators in its later stages); the Princeps was theoretically but a republican "First among equals" in a new guise- but this does not negate the essential premise herein that the Roman 'Empire' was, in many ways, not necessarily an Empire we today speak of- that is: not entirely the equivalent of, for example, the late British Empire (or, for that matter, the Russian Empire of the Czars already mentioned).

Instead, Imperium was (and, if only in this narrower sense, still is), therefore, much more about Power than mere Geography- the vertical (levels, as much as levers, of) power of the State per se within the horizontal, spatial territory within which it might hold sway (its "domain"; its "realm"; its Reich!), and it is in this very sense of "Imperium as Power" that Bernard Holland, in his 1901 work IMPERIUM et LIBERTAS: A Study in History and Politics himself applied the term. His own contrast between Imperium and Libertas, therefore, was the same as David Hume's (as quoted above)-- the contrast (where not also the contest) between 'Authority' and 'Liberty'.

Holland opined, in his book, that [i]f Imperium is power over others, Libertas may be defined as power over oneself, whether the "one" in question is a person, a corporation, or a nation... Libertas and Imperium then are equally power regarded from two points of view, whether as exercised over oneself or over others. If men are to live together in any form of community in order to obtain the benefits of co-operation, each individual must surrender, or at least be content not to have, some portion of their full liberty which they might possess as a hermit or bandit.

Holland went on to note that [i]n each organic State or Nation, the constituted authorities possess imperium in wider or narrower, more or less defined, degrees with regard to the individuals composing the community. This is the very thing American courts- going well back within the history of the Republic- have been groping for in their attempts to better describe (and, where possible, define), within the realm of Jurisprudence, the oft-contentious relationship, for one, between-- as I wrote about in my Commentary for this website from mid-May 2020 (during the height of the first serious breakout of COVID-19 here in the United States)-- the Police Power of a State of this Union (an aspect of its own imperium) and the Due Process Liberty of the individual (his or her own libertas), which I therein summarized with quotations from three different court opinions (two State, one Federal), while opining myself that three things must be borne in mind in any consideration of so applying 14th Amendment Substantive Due Process over and against the 10th Amendment Police Power of an American State [that is, before legally- indeed, constitutionally- trumping said imperium with all due libertas]:

First, that [a]ll authorities agree that the Constitution presupposes the existence of police power, and it is to be construed with reference to that fact.-- VILLAGE OF CARTHAGE v. FREDERICK [122 N.Y. 268 (1890)]...

although, and second: The police power, like every other power, is subject to the Constitution, and cannot be used as a cloak under which to disregard constitutional rights or restrictions.-- STATE v. SCHLENKER [112 Iowa 642 (1900)]...

however, and finally: The fourteenth amendment to the federal Constitution does not limit the subjects in relation to which the police power may be exercised for the protection of [a State's] citizens.-- MINNEAPOLIS & ST. LOUIS RY. CO. v. BECKWITH [129 U.S. 29 (1889)]

Herein we can clearly see Bernard Holland's constituted authorities possess[ing] imperium in wider or narrower, more or less defined, degrees with regard to the individuals composing the community. Again, I will also come back to all this later on; but, first, we must now go on to what could have been-- assuming here (if only for sake of argument) it not already is-- a potentially grave constitutional crisis (although my own view is that a certain event, about to be referred to by me below, in the still very recent past may well have triggered such a crisis yet to come in the very near future), one certainly bringing to the fore Professor McIlwaine's "choice" (between Law and Force above), here in the United States of America.

A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation must have some beginning. It must be either delegated, or assumed. There are no other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either... A constitution is the property of a nation, and not of those who execute the government... a constitution is a thing antecedent to the government, and always distinct therefrom.--
THOMAS PAINE: from Rights of Man [1792]

No people really starts de novo; some political institutions always already exist; there is never a tabula rasa, or state of nature, or Chart Blanche... it is difficult for a convention engaged in writing a constitution not to be embroiled in daily politics and problems of government. And it is hard to live voluntarily under restraint... [I]n times of crisis, either government or people or some part of the people may feel obliged to go beyond the limits that a constitution has laid down... The action of the people as constituent power is, after all, a legal concept, or even a necessary legal fiction when the sovereignty of any concrete persons or government is denied. It does not signify that everyone is actually engaged in the fabrication of constitutions.--
R.R. PALMER: from The Age of the Democratic Revolution: A Political History of Europe and America, 1760-1800 [1959]

A lady [reportedly, a Mrs. Powel of Philadelphia (likely, the wife of the former- and future- Mayor of the city, Samuel Powel): REB-A] asked Dr. [Benjamin] Franklin:
"Well, Doctor; what have we got: a Monarchy or a Republic?";
"A Republic", replied the Doctor, "if you can keep it."--
from a Reminiscence of JAMES McHENRY, Delegate from Maryland to the late Constitutional Convention of 1787 (of an event of 18 September 1787, the day after the original text of the United States Constitution had been formally adopted in Convention before that Convention adjourned sine die)

"Too soon to tell" (or, if you will, "Too early to say") may well also be said of the American Revolution, along with that never-ending quest for the ever-elusive 'more perfect Union' proposed, where not also promised, within the Preamble to that Federal Constitution which ultimately emerged from the aftermath of Our Revolution... so, how has it all gone for the American Republic since its founding? Too soon to tell; too early to say!--
RICHARD E. BERG-ANDERSSON: from Commentary for this website of 4 March 2021

As regards the Insurrection on Capitol Hill of 6 January 2021- along with the relationship of said events to the survival of Constitutionalism in general (as well as to that choice posited by Professor McIlwain in the quotation with which I opened this very piece- along with concomitant attempts to best answer the related question: Law or Force?): and these should not be so easily dismissed, let alone ignored (although many have, and will)- I opined, in that same Commentary of mine from which I have just quoted above, that [o]f course, there is much... we still have to learn about how, and why, what happened on Capitol Hill [that day] took place...: although I am certain more will, at some point, be found out.; and, in the year and a half since those events, this has been largely proving to be true.

The Presidential Election of 2020, as well as its result, was always going to be overly contentious: this much was known even before each Major Party held its respective Nominating Conventions that year. However, in addition to this, and well before the General Election campaign itself first got underway going into that Fall, then-President Donald Trump- as well as many of his supporters, both within and without his Campaign and/or Administration- was already declaiming that, should Trump lose come that November, it could "only" be because of massive election fraud (a problematic proposition, in an of itself, because the far more likely reason a candidate loses an election here, within the United States, is simply because more voters, in a given relevant jurisdiction, have voted for his/her opponent[s]).

The outbreak of COVID-19 (this all being before the widescale availability of the first effective vaccines against the virus and its later variants) merely exacerbated things in this regard: State after State- or, in some cases, Civil Divisions (Counties, Townships and/or Municipalities) within some States (where the States were slow to act, or even hostile to the proposition in the first place)- authorized the use of Mail-in Ballots, or at least expanded the reasons a voter could legally vote Absentee and/or by Mail, in order to reduce the probability that even Election Day polling sites might become so-called "super-spreader events". But many States and/or their Civil Divisions did not do so: and at least some in the Trump camp openly encouraged their supporters to vote in person (whether through Early Voting, if not actually at the polls on Election Day); meanwhile, it appears that most of those voting for Joe Biden for President had appeared more likely to use available Mail-in/Absentee options.

However, many States (or, where this opposite premise might have been resisted at the State level, in "friendly" Civil Divisions within a State) would not allow Mail-in Ballots (which had to already be in the hands of precinct-level election officials by the time the local polls closed) to be counted until after the In-person Ballots (including those resulting from in-person Early Voting as well) had been counted- and, more importantly, their results reported out to the media during the course of Election Night- first! The end result, in many a State, of all this was predictable well before Election Day 2020: in States highly competitive between the Major Parties, it was highly likely- indeed, just about certain- that Trump might be seen as leading in key States come Election Night on into the wee hours of the following day, only to have Biden catch up, or even take the lead, in those States as the results of Mail-in and Absentee returns were being, forcibly belatedly in many cases, reported (indeed, it was in anticipation of just such a happening that, a week before Election Day, I wrote a Commentary about just such a Presidential Election- in which one candidate appeared to be winning on Election Night going into the next day, only to have his opponent end up being seen as the winner only a few days later- more than a century before, if only to illustrate that such a thing was nothing really all that novel within the political history of the American Republic).

Thus, it isn't as if what we saw actually happen as the Presidential Election Returns started, and continued, to come in during the evening of Tuesday 3 November 2020- and on into the following day (and even, in at least some cases, for a couple days beyond)- was the least bit unpredictable: also, just as predictable was the inevitable (as this "play" had been "telegraphed" for at least several weeks before) claim that, because President Trump appeared to be leading in certain States early on, Joe Biden's later taking the lead in those same States (as more and more returns of votes not cast in person [votes purposely counted later- not because of any chicanery, mind you: but merely because those legislators at the State level- along with some administrators at the County level- more supportive of Trump had pushed forward laws and regulations actually requiring such a delay] came in) was, somehow, fraudulent...

this Self-Fulfilling Prophecy, thereby, was itself fulfilled: but only because it was merely self-fulfilling!

What could not be predicted, obviously, was that more overvehement elements of a mob rushing the United States Capitol and its Grounds come the afternoon of the following 6 January would so blithely attempt to disrupt the Tabulation Joint Session of Congress. Of course, such vociferous- where not, at times and in places, also violent- activity failed, largely because it was all pretty much doomed to failure from the start (for, as I myself wrote, on Election Day itself [more than two months earlier]: But we can know that, at some point, the result will (if only eventually) be constitutionally determined and in any event, come Noon Eastern Time US [1700 GMT] on Wednesday 20 January 2021, someone will be beginning the new four-year term (#59 in the history of the American Republic) as President of the United States... for, come what may, the very demands of the Constitution of the United States itself yet remain unrelenting...

later still, nearly two months after 6 January, I further noted that Simply put: there were several other sealed, official records of the Electoral Vote from each State and D.C. that could have been acquired, if necessary, in place of the ones that happened to be at the United States Capitol on 6 January 2021 and, thereby, later used by Congress to formalize the result of the 2020 Presidential Election and, in addition, that the 20th Amendment to the Federal Constitution speaks of the end of a presidential Term of Office, not its beginning and, thereby, prevents an incumbent President- or anyone acting on his behalf- from at all preventing the start of the next numbered four-year Administration; because the current Administration so constitutionally, and definitively, comes to an end, and a President's successor (whoever said successor- whether elected, or succeeding to the Nation's Highest Office through constitutionally and/or statutory Presidential Succession- might turn out to be) comes into that High Office at that same moment. As I myself once said, during an interview- back during the 2016 Presidential Campaign- for an Internet-based publication: "There can never not be a President of the United States"!

In truth, the certification and sealing of the Electoral Vote for President and Vice-President in each State and the District of Columbia back in mid-December 2020 had already trumped [no pun intended] any change in the outcome, absent a "concurring" majority vote within (and between) each house of Congress on objections to same (which, as was actually seen as January 6th became 7 January 2021, just wasn't happ'nin!); and if, in fact, the ultimate goal of the January 6th Insurrectionists was to keep President Trump in power beyond the following 20 January, well-- to here repeat: the very demands of the Constitution of the United States itself yet remain unrelenting!

Still, it was something of a near thing; and, if not much else, the events of (as well as related activities- both in public and in private- leading up to) 6 January 2021 should teach us all that our Constitutions (that is, State as well as Federal) are themselves dear things. But it will be the American people- in today's political reality, over the course of the next few (if not even several) biennial Election Cycles- who will decide whether or not (and, if so, how) the Republic might hereafter best be "kept" (as Benjamin Franklin himself so long ago foresaw); and it is also they who, as ever (to here quote the late Senator Warren Rudman [R-New Hampshire]), "have the constitutional right to be wrong".

If we turn our attention to the controversy with the purpose of seeing the most important political principles involved, we see that the most significant difficulties were of three kinds: (1) those connected with the theory and practice of representation; (2) those connected with the idea of individual liberty or, conversely, those connected with the extent of governmental power over the individual; (3) those connected with the determination of the extent, character, and foundations of local self-government or, to state the fact differently, those connected with the proper distribution of authority between the center and the parts in a broad and composite empire.--
ANDREW C. McLAUGHLIN: from an essay, 'Some Important Aspects of the American Revolution', specially written for The Historians' History of the World-
Part 23: 'The History of the United States', Book ii: 'Later Colonial and National Periods' [1904]

The "controversy" of which Professor McLaughlin writes was, of course, that over at least the political and constitutional issues which, over the course of some dozen years, led to the American Revolution itself, while the "composite empire" to which he refers above is, obviously, the British; yet, as the professor himself should well have known (for he is largely remembered, if at all nowadays, as a leading constitutional historian of his day), the Constitutions (again, plural: State as well as Federal) drafted in the wake of the Revolution merely transferred these same three kinds of "significant difficulties" to what was, in essence, the "home-brew" version of that British Empire being established on American soil throughout the last quarter of the 18th Century, and beyond. Therefore, it should be no surprise that these same three "difficulties" remain with us here in the United States of America now, in 2022!

For we nowadays can see McLaughin's (1) above in the political battles and judicial arguments, in many a State of this Union, over such things as Redistricting (the boundaries of Congressional and State legislative electoral constituencies), along with what might-or might not- be permitted under various and sundry Election Codes; meanwhile his (2) can be discerned within the responses (whether positive, or negative) to the U.S. Supreme Court's several recent pronouncements relating-whether indirectly, or directly- to personal decision making over mind and body, soul and conscience; and McLaughlin's (3) can so easily be perceived as being involved in that which I have just outlined in this very paragraph as regards both his (1) and (2).

In short, the very stuff behind many of the disputes and arguments that themselves fueled that Revolution- and which would come to result in Benjamin Franklin's "Republic, if you can keep it"- remain quite 'live' to this day!

When America declared her separation from Great Britain in 1776, the problem of organizing an empire of thirteen states crossed the Atlantic, and the Americans must now find some way of organizing the states into a unity harmonious with local liberty. Their first effort was not a success. The Articles of Confederation were not suited to the needs of the situation...

[I]t is in the Constitution of the United States that we see the consummation, the fruit of the American Revolution. We see first that by the adoption of the Constitution the Americans solved the problem of reconciling local self-government and local self-determination with imperial unity, of conserving local liberty and at the same time guarding general interests. This was done by establishing a federal state. --
ANDREW C. McLAUGHLIN: from an essay, 'Some Important Aspects of the American Revolution', specially written for The Historians' History of the World-
Part 23: 'The History of the United States', Book ii: 'Later Colonial and National Periods' [1904]

[T]he United States of America is not so much a country- that is: a Nation-State in the usual sense of the term- so much as it is the core of an 'Empire'... or- rather, historically speaking- three successive such 'Empire's, as follows:

It is the politicoeconomic and sociocultural ebb and flow within- as well as the many slings and arrows (perhaps literal, as well as figurative) from without- this "3rd American 'Empire' " that is ever in play.

Unlike the first two of its 'Empire's, this 3rd 'American Empire' is not an Imperium, in which the Federal Government of the United States of America has direct- at least, political- control over said Imperium's components; rather, the 3rd 'American Empire' is a Constellation: that is, a mere collection of allies and protectorates which, if only from time to time, can tell the "Emperor" (the President of the United States and his/her Administration) just where to "stick it" and- more or less (again, from time to time)- get away with it...--
RICHARD E. BERG-ANDERSSON, from his Commentary for TheGreenPapers.com of 1 March 2014

The American Union has, often as not (if not even more often than not), been a rather fractious one from its very inception: the classic tale of one-time mere 'Federal Union' re-emergent from the ashes and anguish of the Civil War as 'American Nation' ("Before that war, the United States 'were'; afterwards, the United States 'is'" in the conception of more than one historian)- the stuff of schoolage Social Studies classes I attended as a boy now more than a half century ago- is, in truth, largely just so much myth and legend (in fact, it would not be until between the two World Wars that the United States of America stopped being listed, alphabetically, among the 'A's re: International Law and, instead, would come to be listed, among the 'U's, as the United States [with or without "of America"]-- this, somewhat ironically, at around the same time that the United Kingdom of Great Britain and [now just Northern] Ireland, having fostered the "Irish Free State" to the south of the latter, began to downplay its being 'Great Britain' [for short] in favor of a new identity as 'the United Kingdom' [without, necessarily, including all that followed]: although this had as much to do with Britain's "Dominions" (Canada, Australia, etc.), during that same era, being seen under International Law- and voluntarily treated, by the "mother country"- as independent Nation-States in their own right).

And that 1st American 'Empire' described above- the "more perfect Union" (than the Confederation under its Articles could ever hope to be) birthed by the Constitution of the United States- could not, in any real way (certainly not at the start, nor for no little time thereafter) make it any the less fractious: for the 13 British Colonies-become "free and independent" States (as a result of both the Declaration of Independence and the Revolutionary War already, at the time, joined) each remained jealous of their own respective sovereign prerogatives (among other things, as I myself noted back on 15 May 2020, the States were- from the very start of the American Republic- ever jealous of keeping hold of their own respective Police Power largely because the very concept of Police Power is, in fact, older than the United States of America itself, having been an important element of that English Common Law long inherited by the British colonies-become States of the then-new American Union). It is for this very reason, I referred- in the preceding section of this piece- to this Union as "the 'home-brew' version of that British Empire being established on American soil throughout the last quarter of the 18th Century, and beyond".

And so it was: although Federal in nature, with the States themselves retaining at least no little of their own individual Sovereignty, the new federalized United States of America would, just like the more unitary British Empire from which it had separated, have its own colonies- denominated 'Territories' (although the Americans would not make the same mistake the British had and, instead, allow for at least some representation from same in its Congress [albeit through a single "delegate" (not 'representative'!) to its lower house who would have no vote])- which could, indeed likely would, become constituent States of the Union of their own in future. Meanwhile, the States themselves would maintain, as well as eventually create more, Counties (or equivalent) which would have the same relationship to the State's legislature as those in England and Wales, Scotland and (after 1801) Ireland, would have to Parliament at Westminster: thus, while the federal Congress was- ever after- the equal of Parliament in International Law, the legislatures of the several unitary States would- in fact- be the truer repository of "parliamentary" sovereignty in terms of governance per se (the very stuff of the ensuing political, and constitutional, arguments over so-called 'State's Rights' still ongoing [see Professor McLaughlin's (3) "the proper distribution of authority between the center and the parts in a broad and composite empire" in the previous section of this piece]).

So, was thereby the adoption of the Federal Constitution- even with its many concessions to the powers of its constituent States (so necessary to get that document ratified by popular Conventions on the State level in the first place)- actually a "counter-Revolution" ("Meet the new boss, same as the old boss")? Certainly, many historians have thought so (one such recent historian has gone so far as to subtitle his own work on the subject 'A Retreat from Liberty'! Another historian, meanwhile, has referred to "the Framers' Coup").

But others are not so sure: indeed, some of these even question whether the not the American Revolution was really a "revolution" at all (or, perhaps hedging their bets, treat the Civil War-- that mere 'Union' become full blown 'Nation' thing again-- as having been the "real" American Revolution [Abraham Lincoln's declaiming, at Gettysburg, that our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal: itself at odds with the fact that, at the time the Constitutions (again plural: State as well as Federal) were first adopted, many free men (and, yes, it was all males who voted) were- for various reasons (mainly connected to real property ownership requirements for the suffrage)- ineligible to vote for those who would represent them in State legislatures as well as in Congress; however intentional or not, Lincoln's statement is- by these historians- here seen as having been the vanguard of an actual "revolution" to come as that very "nation" sought to constitute [or was it reconstitute?) itself as such after war's end]: was the post-Civil War era [Reconstruction, followed by the Gilded Age] the birth, or rebirth, of the Nation?).

Still other historians (hedging their bets even moreso?) accept that the American Union of 1789 (or 1791, for those who'd like to include the first ten Amendments to the Federal Constitution Americans generally take as being their 'Bill of Rights' as also having been part of the "original" Constitution of the United States of the Founding Fathers in toto) was either "counter-Revolution" or "no revolution at all", but then argue that newer mini-"revolutions" nonetheless emerged, over time, as antebellum American History continued apace (the "untouched by human hands" 'clockwork' Electoral College of the Framers giving way to a 'plebiscitary' Presidency [still indirectly elected, of course (hence, the term "plebiscitary"), but from then on chosen within the "guardrails" of political Parties of scale] after the election of Thomas Jefferson in 1800/1801; the later rise of Mass Politics [even more organized within Party structure], a generation thereafter, as Universal [white] Manhood Suffrage spread across the land in what has actually been called the "Jacksonian Revolution"-- or, at the very least, referred to as 'Jacksonian Democracy' as a counterweight to the 'old Republic' of a disappearing "federalist" "age of Deference").

It is the latter interpretation of historical events- the notion that generational (more often subtle than outright violent) 'small revolutions' (much as described in the preceding paragraph) have ever "moved the needle" within the United States throughout History- that most reveals the ever-fractious nature of the American Union of its constituent States, still- to this very day- but a Union of such sovereign States within a federated Nation-State (one of Sections and their Regions, each made up of groups of said States, ever jostling for political, social and cultural predominance within the whole), itself the metropole of an "Empire" (albeit, since World War II, but the core of a 'Constellation' of allies and protectorates- many of which are more committed to the relationship than others, some of which vary- actually vacillate- between strong attachment to just such a commitment and a much weaker connection to same, depending on each their own geopolitical circumstances- as well as their own relationships with other major "players" on the international stage- over time).

Yet it is this very rambunctious Union-Nation-"Empire" that, "Superpower" that it became well before even I was born in 1956 (and yet remains, fractious though it may- in fact- be), has now been forced to confront what is, arguably, the biggest challenge to Constitutionalism (as a global phenomenon) since the rise and fall of that one-time 'Axis' of Adolf Hitler's Germany, Benito Mussolini's Italy, and the pre-1945 Japanese Empire!

All of which now brings us back, obviously, to the ongoing war in Ukraine...

[W]e have the lineal successor to the European 'Great Power' System- the European Union- facing a direct threat to its own political and economic oversight of Central and Eastern Europe from the Russian Federation (itself the principal successor to the defunct Soviet Union which had provided- and, indeed, had carried out- much the same threat during the Cold War and which itself was the direct successor to All the Russias of the Czars) to the east.

There is, therefore, a reason former Warsaw Pact members- such as Poland and Hungary, the two Nation-States formerly joined together as 'Czechoslovakia', Romania and Bulgaria (not to also mention three former Republics of the Soviet Union itself: Estonia, Latvia and Lithuania)- fairly jumped at the chance, once the Cold War had ended, to join both the EU and NATO!--
RICHARD E. BERG-ANDERSSON, from his Commentary for TheGreenPapers.com of 16 May 2014

Foreign Policy 'Realists' argue that the United States of America (with or without its NATO [and EU] allies) are as much responsible, if not even more responsible (depending on the Realist), for the carnage Russia's forces are currently visiting upon Ukraine: after all, what was Putin to do (these ask)? Allow a potential EU member-state, where not also a NATO ally, in the heart of the western part of what was once the Russian Empire?! For this reason, they see the Expansion of NATO in the post-Cold War decade or so as a terrible mistake (and, to many- if not most- of them, the recent accession of even Sweden and Finland, already EU member-states, to NATO simply exacerbates things).

But re-read that which I quoted from myself just above: for most recent events have, likewise, surely caused those two formerly neutral Nordic countries to also "fairly jump at the chance", and for much the same reason. Besides, what's done is done and, as a result, the United States now finds itself (as it so often has throughout much of the history of the American Republic) on the very sharp horns of a rather serious historical dilemma, which itself stems from the very words found within the United States' own Declaration of Independence (America's "Mission Statement", as it were)-- to wit, those "self-evident Truths": that all men are created equal while endowed by their Creator with certain unalienable Rights including Life, Liberty and the pursuit of Happiness; and in order to secure these Rights, Governments are instituted among men, deriving their just powers from the consent of the governed.

This dilemma itself can probably best be summed up by the title of a now quarter-century old book, one subtitled 'The American Encounter with the World since 1776': Promised Land, Crusader State authored by the Pulitzer Prize-winning historian Walter A. McDougall-- for those twin concepts are behind the most important questions posed by the very horns of that dilemma: is the Promise of those "self-evident Truths" only to be enjoyed by those who have entered (whether by birth or immigration) into this 'Promised Land' itself? Or are these Truths also available via export elsewhere? That is: are these Truths, in fact, so self-evident as to- rather than merely belonging to America alone- be the at least potential province of all Humanity? If this last, then those who have so availed themselves should thereafter enjoy living under Governments exercising the same just powers as do those of the United States as a whole, as well as within its own constituent States!...

and one such "just power" is the power of said Governments- so long as these are based on that ever undefinable, often indeterminate (where not even elusive), consent of the governed- to seek protective alliances, or collective security, under such "umbrellas" as the North Atlantic Treaty Organization no less than their seeking economic opportunity, and financial stability, within such as the European Union (itself, as I've said earlier, more or less "sponsored" by the USofA)!

I can here only repeat that which I wrote for this website now more than eight years ago (during the previous 'Ukraine Crisis' [as it were]), where I noted that unlike as was the case when the nations of Eastern Europe were within the USSR's 'Warsaw Pact', no one has held the proverbial "gun (or, for that matter, tank in the street) to the heads" of the leadership cadres of Poland, the two states that were once Czechoslovakia, Hungary, Romania or Bulgaria- or, for that matter, the Baltic States of Estonia, Latvia and Lithuania (themselves once forced into the Soviet Union proper) and forced them to join NATO. All these countries joined NATO because they were, to put it most bluntly, scared-- of Russia! And to use NATO expansion as something of an excuse for the Russian reaction would be the equivalent of the enablers of a schoolyard bully claiming that he or she bullies only because people have already said he or she was a bully in the first place!

There is an old adage to the effect that Nothing is more prideful than Empire, nor so unwilling to admit of, let alone confront, Error; yes, this is something of which a 3rd American Empire- Constellation, rather than Imperium, though it be- should be most mindful, no less than that Slavonic metropole governed from the Kremlin currently wreaking havoc within, and raining destruction upon, its neighbor. But the concept of Error cuts more than one way: what the Realist might claim has been a mistake might well have turned out to be, or at least become, that which the Pragmatist sees as a practical platform for defending the West and its political values, for choosing Law over Force (as messy as these concepts- often expressed as 'Law and Order'- can so often become within free societies) as the basis of constitutional organization (and one can only imagine what the current situation would have been like had NATO still only had, as its member-States, those which were only such back in the early 1990s: the Realist might well opine that, had this but remained the case, Putin might never have ordered this most recent invasion of Ukraine; the Pragmatist, however, asks 'But what could then have been done if he had anyway?').

In the main, we are here left to consider the old story of a New Hampshire militiaman, fighting within George Washington's then-nascent Continental Army (after that Shot Heard 'Round The World, but before Independence a little over a year thereafter), who was asked why he was so willing to fight the British; his answer? We means to govern ourselves; they means we shouldn't!. Now, nearly two and a half centuries later, Ukrainians are, similarly, desperately fighting to maintain the Libertas of themselves under their own Imperium (in Bernard Holland's definitions of same, recounted above), and under their own constitution, rather than that of the Russian Federation. To Vladimir Putin's concept of "greater Russia" (something of an early 21st Century vision of that "All the Russias" the Czars once ruled) just such a thing is unconscionable, and underpinning the so public "Other-ing" of Ukraine (in words, as well as deeds) by Putin is his denial of the very existence of a separate people- that is, separate from Russians- to so constitute itself.

Not much else can be so threatening to Constitutionalism than an attempt to erase, even eradicate, its most essential element- the very constituting power: a People!

It is this, as much as anything else, that most free Ukrainians today fight (quite literally!) against; and, having no chance whatsoever at relief, in this regard, from the menace to their east, it is natural for them to have turned to their west for all due help and assistance.

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.--
United States Supreme Court Associate Justice DAVID DAVIS, in the Opinion of the Court in the case of Ex parte Milligan [4 Wallace (71 U.S.) 2 (1867)]

The fundamental principle... [is] that government is but the creature and servant of the people;... that government and the state are not identical, and that government cannot set the limits to its own authority;... that there should be a government of law and not of men, because the constitution as law was set above all mere legislative enactment.--
ANDREW C. McLAUGHLIN: from an essay, 'Some Important Aspects of the American Revolution', specially written for The Historians' History of the World-
Part 23: 'The History of the United States', Book ii: 'Later Colonial and National Periods' [1904]

In short, as well as in conclusion, a constitution (as described directly above, as well as throughout this piece), whether at home or abroad, is not at all- in and of itself- a "suicide pact": yet it ever remains at issue- the very stuff of (much more usually, one hopes!) politics; but also (equally hopefully, far more rarely) the very stuff of defensive war- whether or not a Republic constitutionally formed can, in fact, be "kept" (in Benjamin Franklin's formulation)...

but, No-- the rules have not changed!

Modified .